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Friday, November 30, 2012

How To Take a Law School Exam



1.  Everyone gives you different advice.  Take what sounds right to you and ignore the rest.     

2.  The best way to do well on exams is all too obvious: study!  Even if you’ve slacked off until now on this requirement, it's still not too late to put in the time.  Okay, studying is hard work, but whoever said you only get to do easy things in life?  This is your chosen profession—right?—so it deserves the massive effort necessary to acquire the knowledge to do your job competently.

3.   Clear up things you still don't understand that are necessary for the exam.  What are the foggy parts of your notes?  The difficult issues for you in this course?  If you can’t figure them out yourself, get help.  Ask your fellow students, consult other texts or student outlines, contact the professor.  But don’t leave major gaps in your knowledge unfilled.

4.   Try to organize the details into a bigger picture. But don't overdo it.  Trivia can drive you crazy and get you sidetracked. READ THE PROFESSOR. What was important to him/her in the lectures?  Things that the professor emphasized are likely to be on the exam.  Things that were not emphasized are unlikely to be major features of the exam.

5.  Word List.  For closed-book essay exams, I recommend you memorize a short (no more than 20 words) list of topics that are likely to be on the exam.  For example, in a Contracts course the word list might contain words such as: liquidated damages, mitigation, forseeability, quasi-contract, etc.  Below I will tell you how to use this list during the exam.

6.  Mental Attitude.  This is going to sound strange, but you should enjoy taking exams.  Why?  Well, think about it.  For the most part your role in the law school learning process is passive: you just sit there and absorb things as if you were a sponge.  But when it comes to the exam you are the active participant, taking stage center, and it’s time to show off what you know and how well you can present it.  As a lawyer you will often be in the position of taking charge, so here’s your chance to do it while in law school.  The opposite attitude (“I hate exams and I’m scared I’ll do badly”) won’t help you a bit in approaching the exam with the confidence you should be exhibiting.  See if you can cultivate “I’m good, so get out of my way.”

7.  The night before the exam: GET A GOOD NIGHT’S SLEEP!  One of the major things you’ll be tested on is how well your brain works.  If you spent the night cramming for the exam with coffee, drugs, or who know what, your brain will be fried and your exam performance dismal.  A rested brain is more important than last minute knowledge gained.

8.  If Big Things Go Wrong.  What if the unexpected happens—you get sick, a family member dies, you get a distress call from your best friend to fly across country and rescue him/her—should you postpone the exam?  Obviously things can occur that would keep any rational person from taking the exam on time, and I’m not saying otherwise.  But here should be your rule: if it is at all possible to take the exam, do so.  I’ve too often seen students with the opposite attitude (“I hope something comes up so I can duck the exam!”).  A postponed exam has a way of never getting done.  I’ve seen legal careers wrecked because the postponement of the exam was the end of everything.

9.  If Little Things Go Wrong.  You need to consider ahead of time the small matters that can turn the exam experience into a nightmare, and develop fail-safe backups.  I’m referring to such things as getting the date or time of the exam wrong, the alarm clock that doesn’t go off, the car that won’t start, the pen or computer that won’t work, etc.  Make sure you understand well ahead of time all the rules of the exam, particularly what you’re allowed to bring with you into the exam and what not, and how to turn in the exam.  Learn the honor code and pay attention to its rules. 


1.  Fill out the exam as instructed.  When the starting signal is given, first set up your time schedule. DON'T MAKE  MISTAKES ABOUT THIS. When I’m grading exams I’m unforgiving if students make mistakes about time. What does it say about how they'll later practice law where doing things on time is very important?

2.  Write down your word list separately and save it.

3.  Plan to answer all the questions asked unless told parts the exam are optional. On objective questions guess unless told that there are penalties for so doing. (If enough people miss the same objective question the grader will frequently throw it out—so get in there and do your share by missing it too).  On essay questions, if you don't know, fake it.  What?  Yes, fake it (this is particularly important on bar exams).  Pretend you’re the monarch of your own jurisdiction and boldly invent the rules.  Our law is not so perverse that it deviates much from common assumptions, and your guess will often get you some points, whereas a blank sheet of paper will get you nothing.  Some of you reading this are very, very good at this faking skill, having honed it through years of educational endeavors, and it’s time to strut your stuff.

4.  Inserts and abbreviations are fine if clear.  Don’t confuse the grader.  If you can’t remember the name of the case you want to cite, describe it (“the hairy hand” case, for example).

5.  On essay questions, read each question carefully, trying to get a sense of its bigger meaning. Issues will jump out at you. This will give you a sense of relief, but it’s no time to relax. Now re-read the question carefully, underlining important points, making marginal notes about the issues or thoughts you have you want to include. Now go back and look at the question. Are there major parts of the essay question about which you are saying nothing?  That’s suspicious.  Has the professor thrown in surplusage?  That would be rare.  Most likely there’s some hidden issue in the unexplored part.
6.  Outline each essay question before writing out the answer to any of them.  Why?  Because your brain will be the freshest at the start of the exam, so use it to plan the whole exam during that period.  If you spend all your freshness on the first essay question, and then have to do original thinking on the later questions when your brain is tired, those questions won’t be as impressive nor earn as good a grade.  Outlining the whole exam also gives you a sense of its scope and how much time you’ve got for each question.  You don’t want to devote most of your time to the first essay question when there are two and they count equally in the grading.

7.  Check your outline against the word list. For each word on the list ask yourself is this issue hidden in the question.  For example, if one of the words on your word list is “promissory estoppel” ponder whether there are promissory estoppel issues that you haven’t thought about presented in the given fact pattern.  If you do this carefully with each of the words on your list, I guarantee you that ideas will pop into your head that will earn you extra points you would otherwise have forfeited.

8.  It's time to start writing. On essay questions, should you take it issue by issue or first present one side’s case and then the other side’s case? The exam may tell you which to do, but if not, please yourself.  Just make it clear to the grader what you are doing, and then do it methodically as announced.

9.  Answer the exact question asked.   If the question says “Give the arguments of the parties” don’t begin your answer with “The court rules that . . .”  Your instructor wants to hear what the parties will argue.  Remember that you’re being trained to be an advocate, not a judge, so lets hear what you’ll say as a lawyer. 

10.  Don't assume away the hard parts and make the exam too easy. This isn't a contest of wits; it's a performance, and you’ll get few points for evading the hard issues.

11.  Don't repeat the facts except as necessary to your analysis. Unnecessarily repeating the facts is a waste of precious time.  Good attorneys, however, do use the facts to make their points (“The plaintiff chose to send an email because it was faster than the postal service, thus showing the plaintiff's emphasis on speed”).

11.  What issue should you start with?  Here’s valuable advice: start with the most important issue, the most vital one, the one at the heart of it all.  One of the things we’re testing you on is whether you can spot the most important issue.  If your answer starts with something petty that no lawyer is going to spend much time on, this tells the grader you don’t know what’s important and what’s not, a bad message to convey.  The exam has so much time pressure that if you spend your valuable minutes on minutia you’ll convince the grader you don’t understand how to hone in on the heart of a controversy.  Who wants a lawyer who makes that mistake?

12.  On an exam I want to see the following three things repeated over and over: spotting the issue, an explanation of the relevant black letter rules of law, and then an argument about how these rules apply to these facts.  Some instructors don’t require you to repeat the black latter rules of law, but I want to see them.  I think that lawyers spend a lot of time explaining what these rules are (to clients, to the other side, to the judge, to the jury) and so I’ll judge you on how clearly you can delineate them.

13.  Avoid unexplained value judgments: “The plaintiff's conduct was reasonable." Too easy to say and it conveys nothing. Back it up with facts and explanations showing why it was reasonable.

14.  Give parallel arguments.   Having presented the plaintiff’s brilliant argument the student frequently has so impressed him/herself that he/she then forgets to say what the other side will argue in response.  When you go over the exam with the professor afterwards the professor will point to this problem and say, “How often do you think when one lawyer makes an argument that the other lawyer just sits there, admires it, and gives up?”  We are training you to be an advocate.  Be careful that you don't convince yourself and leave the other side mum. 

1.   An exam is a performance: and all good performances have some things in common, particularly they have a big start and a big finish. It’s not the goal to get the "right" answer—after all this isn’t a math exam with just one correct solution.  It's your mastery of the subject and your analysis that's being judged.  You’re being compared with others, so your exam must stand out.  Therefore add special things: brains, clever analysis, how this problem would come out in the “real world,” policy, etc. Most exams are as interesting to read as the printed verse on Christmas cards; make yours more interesting than the other exams and you’ll get a better grade.  Start well, and for heaven’s sake have a great sentence at the end, typically a policy statement (see below).  When I’m grading an exam that just stops mid-thought (sometimes with the word “TIME” written last), I ask myself what kind of lawyer is that person going to be, and the answer is that he/she can’t plan well or get all the important thoughts into the allotted time (skills any good attorney possesses while bad ones commit malpractice).

2.  To get extra points, put yourself in the place of the person grading the exam. What will please him/her? What does the instructor want from students?  How about humor?  Citing cases?  Favorite theories or causes?  Does your instructor have pet peeves? [Mine: “breach” is spelled with an "a"; don't use exclamation points!]  Be as literate as possible (and it’s here that you English majors will have a leg up on the others].

3.  The big finish. Try a policy statement that explains why the result you’ve come up with will make things better for the future.  Phrase it well.  Remember that as soon as you quit writing this last sentence the instructor immediately assigns a grade, so this is the moment when impressing the grader is most important. 


1.  If you have other exams yet to take, stop any thoughts or discussions about this exam immediately and concentrate on the upcoming ones.  Panic later, when all exams are over.
2.  Very important rule: don't do postmortems on the exams by discussing them with the other students.  Violating this rule is a sure way to panic yourself.  Taken collectively you all know more than any one of you knows individually, so if you want to scare yourself, postmortems are a sure way to do it.  If someone starts to talk about the exam to you (“Did you see the promissory estoppel issue in question two?”) walk away quickly.  You don’t need to hear things you may have missed.  Go out and have a drink with non-law students.

3.  Good luck on your exams.  Once you’re done with the law school and bar exam ones, you’ll likely never have to take another exam in your life, so work towards that happy moment which, trust me, will come.

Related Posts:

"How to Pass the Bar Exam," April 14, 2013; 

Tuesday, November 20, 2012

Straight People: Thanks From the LGBT Community

When I was growing up in the middle of the last century homosexuals were the lowest of the low.  The clergy said they were sinners destined for the hottest spot in hell, the lawyers said they were criminals whose most private of sexual acts constituted a felony that could put them in prison for twenty years or more, and the doctors deemed them mentally ill but possibly treatable with procedures such as electric shock or mind-altering drugs.
Last week the states of Maine, Maryland, and Washington, by vote of their citizens, allowed gay people to get married!  More than half of the people in the United States tell pollsters that they approve of gay marriage, and it’s now clear that the barriers to the treatment of LGBT people as ordinary citizens with ordinary rights are falling fast, one by one.  Gays can—at last—serve in the military, marry, adopt children, and the list goes on.  There are still battles to be fought: the elimination of the Defense of Marriage Act (which denies federal recognition to gay marriages, and which the Supreme Court will take up in this current term), the expansion of civil rights for gays so that, for example, it a gay person’s lifelong partner dies the taxing authorities don’t pitch the survivor from his/her home, etc., but these skirmishes will all have a predicable happy ending, if not tomorrow then the day after, or the day after that.
Mary Jo Kilroy
By its very definition a “minority” cannot run things.  Gay people have fought impressively for decades to gain the right to equal treatment, but it cannot come about until the majority adopts the same goal.  That’s what’s just happened in Maine, Maryland, and Washington (and in Minnesota, where the voters turned down an amendment to the state constitution that would have banned gay marriage), and, frankly, it amazes me that these good people have taken such a bold stand.  From the very beginning of the battle for gay rights there have been valiant and brave straight people who have stood up and declared that basic human decency requires that gays be treated like everyone else.  From my gay rights days in Columbus, Ohio, Mary Jo Kilroy is a shining example of this.  In a day when it was dangerous to do so, and politically suicide, she ran for office after office (eventually becoming a member of Congress) and declared her strong support for gay rights.  There are thousands of similar examples of straights leading the charge, and I have mentioned a few of them in these blog posts.
Recently the straight drumbeat has gotten louder.  In June there was an incredible “Letter to the Editor” in the Columbus Dispatch by a woman named Lee Taylor in which she defended “Funky Winkerbean” by Tom Batuik which had been attacked in a previous letter by a man who was offended when Batuik’s plot line did not permit discrimination against gays at a high school prom.  Ms. Taylor commented:
[The letter writer] used the word “normalization” three times. I don't know how “normal” homosexuality is, but I do know that it's not only been written about from the beginning of literature, it's found to some degree in almost every species on Earth. If the only criteria for normal is what the majority are or do, everyone from redheads to Star Trek fans are abnormal. . . .
Sexual orientation is not a choice. It is as intrinsic as the color of a person's eyes.
Does [the letter writer] seriously believe that a child willingly elects a life that's sometimes so full of despair that a 10-year-old would hang himself? I am, by the way, a heterosexual mother of four, grandmother of six.
I had never met Ms. Taylor, but I called her up and congratulated her on her letter, at which point she  said she’s written a number of similar letters in the past, and that anti-gay discrimination disturbed her greatly.  She is one of my heroes.
Joe Blundo
The Columbus Dispatch has a columnist named Joe Blundo who usually writes entertainingly on various local matters, but every once in awhile he gets serious about something that bothers him.  In July his column marveled at how little stir newsman Anderson Cooper caused when he came out of the closet.  Blundo commented:
If there really were a “homosexual agenda,” you’d have to assume that Cooper, Rachel Maddow, Rosie O’Donnell, Suze Orman, Jim Parsons, Neil Patrick Harris and George Takei are all part of the conspiracy. Now, really, does that sound like a cabal that wants to take over the world or just the guest list for an Emmy Awards after-party?
Homophobia — the ugly, personal kind — still exists, of course, but it seems to have a bleak future in the public arena. . . . When bigotry moves from the abstract to the personal, it becomes harder to defend.
Well, the entire nation is moving from the abstract to the personal.
We all know gay people. They’re our neighbors, our relatives, our co-workers and — yes — our celebrities. So we live in this strange situation in which it is still permissible to oppose full rights for gay people — but don’t you dare say mean things about my cousin, my friend or Lance Bass. . . . Attacking them isn’t just politics anymore. Now, it’s personal.
Add Joe Blundo to that list of my personal heroes. 
Your own city has many similar examples if you look for them: straight people who are annoyed by homophobia and when they see it they speak up, thus helping silence it.  As this happens by the hundreds, by the thousands, by the millions, a wonderful societal change occurs: gays cease to be sinners, criminals, and/or mental defectives.  Instead—as wonderful shows like “Modern Family” illustrate—they are just people like everyone else.
And last week, at the ballot box, straights illustrated this in a very convincing way.
I think I can safely speak for the entire LGBT community when I say to all you straights out there who are doing these tremendous things: Thank you, thank you, thank you!
Related Posts:
"The Aging Gay Rights Activist," March 24, 2010
"Frightening the Horses," April 4, 2010
“Homosexuality: The Iceberg Theory,” April 25, 2010
“How I Lost a Gay Marriage Debate,” April 29, 2010
“Straight Talk,” May 10, 2010
“Marijuana and Me,” July 11, 2010

“How To Tell if You’re Gay,” August 31, 2010
“The Thunderbolt,”September 3, 2010
“How To Change Gay People Into Straight People,” September 20, 2010
"How Many Homosexuals Are There in the World?" November 8, 2010
"Choose To Be Gay, Choose To Be Straight," January 25, 2011
"The Homosexual Agenda To Conquer the World," February 8, 2011
"Seducing Straight Men," March 3, 2011
"Coming Out: How To Tell People You're Gay," March 27, 2011
"Jumping the Broom: How 'Married' are Married Gay Couples?" July 17, 2011
"The Legacy of Homophobia," August 2, 2011
"Going Undercover at an Ex-Gay Meeting," September 19, 2011
"The Presumption of Heterosexuality and the Invisible Homosexual," October 2, 2011
"Gay Bashers, Homophobes, and Me," January 27, 2012
"On Being a Gay Sports Fan," March 9, 2012
"Sexual Labels: Straight, Gay, Bi," April 15, 2012
"The History of Gay Rights in Columbus, Ohio," June 4, 2012
“I Support the Right of the Boy Scouts To Ban Gays,” July 24, 2012

“Gay Marriage, DOMA, Proposition 8 and the Mysterious Supreme Court,” January 15, 2013
"Gay Marriage, the Supreme Court, and the Future," June 26, 2013

“A Gay Hoosier Lawyer Looks at Indiana’s RFRA: The Religious Bigot Protection Act,” March 30, 2015;
“A Guide to the Best of My Blog,” April 29, 2013

Monday, November 5, 2012

Life’s Unexpected Pleasures: “¡Más Bueno Que El Pan!”


I took two years’ worth of Spanish classes in high school, and two years more of Spanish in college, and there was a day when my Spanish was pretty good.  With dictionary in hand, I was even able to read books and plays in Spanish.  But like all learning, things you don’t practice will fade, and—alas—my Spanish is all but gone.  I feel sure that were I placed into a Spanish-speaking culture where no one spoke English it wouldn’t take me long to be able to converse on a rudimentary level, but that’s unlikely to happen.  One time when I was visiting my son in Seattle I was staying in a hotel room and needed two things: an extra pillow and to have my bathroom door fixed since it wouldn’t stay closed.  When the maid arrived I pointed these things out, but she said, “No English, Señor.”  At this point, and to my own amazement that I remembered the question, I picked up a pillow and asked her “Como que dice?” (“What do you call this?”)  She replied “Almohada” (“pillow”).  I smiled. “Uno más, por favor,” to which she nodded.  I then led her over to the bathroom door and demonstrated to her that it wouldn’t stay shut.  “No es seguro!” she exclaimed.  I was very pleased.  “Sí, no es seguro!”

The one Spanish phrase that I use at least once a week is “¡más bueno que el pan!”  It means “better than bread,” and is employed by me when something good unexpectedly happens.  For example, I pull my car into a crowded parking lot, I’m in a hurry, and I’m annoyed to realize that finding a parking space might take some time.  As I’m worrying about this annoyance a spot opens up right in front of my car, and I pull in with no time lost.  As this happens—and now as a deeply engrained habit—I delightedly mutter “¡Más bueno que el pan!” 

The English word for such pleasant surprises is “serendipity.”  I’ve posted before about luck in one’s life (see “On Being Lucky: The Second Anniversary of My Heart Transplant” in Related Posts below), and the big moments when luck suddenly comes your way are of course wonderful, but I also think it makes life so much more pleasant to celebrate the little unexpected things as they happen which make our existence easier, more enjoyable, or more fun.  Think of ¡Más bueno que el pan!” or “Hot damn!” (etc.) as the opposite of the swear words that rise to the tongue so quickly at darker moments.
Alas, we tend to concentrate on our problems.  We even exaggerate them: does the phone always ring when you’re in the shower?  Of course, not—you only remember the times when it does.  Real problems are worrisome, of course, and need to be thought out and, to the extent possible, solved.  But they mustn’t be the primary things in our lives.  Are you the sort of person about whom people say “You worry too much”?  Do you brood over matters that you cannot solve, but which you also cannot let go?  What sort of life is that?  Will you still be worrying on your deathbed? 

Consider that if by some magic all the problems in the world—large and small—were resolved and suddenly over, the respite would be short lived indeed.  With seven billion (plus) individuals on the planet hurrying through their lives, and with the multitude of ordinary and extraordinary things that happen routinely (like illnesses or hurricanes) the world would be problem-free for all of, say, six seconds, and then the troubles of life would be with us anew.  I’ve read that if you’re in a bad mood you should force yourself to smile for one full minute, and pretend, no matter how phony this is, that you are really happy.  The end result is that you begin to feel better almost immediately.  If you doubt me, try it and see if I’m wrong.  Attitude adjustment can be as simple as trying to capture a better mental state.  “Smile and be happy” is more than a tired cliché.

We’re allowed to be happy in life, and that happiness should be cultivated whatever its source.  The good things that occur—whether beautiful moments or objects or spectacular views or the kindness of strangers—should be treasured even if they are as insignificant as the lucky parking space.

I close with one of my favorite writings, the Max Ehrmann prose poem “Desiderata” (1927):

Go placidly amid the noise and the haste,
and remember what peace there may be in silence.

As far as possible, without surrender,
be on good terms with all persons.
Speak your truth quietly and clearly;
and listen to others,
even to the dull and the ignorant;
they too have their story.
Avoid loud and aggressive persons;
they are vexatious to the spirit.

If you compare yourself with others,
you may become vain or bitter,
for always there will be greater and lesser persons than yourself.
Enjoy your achievements as well as your plans.
Keep interested in your own career, however humble;
it is a real possession in the changing fortunes of time.

Exercise caution in your business affairs,
for the world is full of trickery.
But let this not blind you to what virtue there is;
many persons strive for high ideals,
and everywhere life is full of heroism.
Be yourself. Especially do not feign affection.
Neither be cynical about love,
for in the face of all aridity and disenchantment,
it is as perennial as the grass.

Take kindly the counsel of the years,
gracefully surrendering the things of youth.
Nurture strength of spirit to shield you in sudden misfortune.
But do not distress yourself with dark imaginings.
Many fears are born of fatigue and loneliness.

Beyond a wholesome discipline,
be gentle with yourself.
You are a child of the universe
no less than the trees and the stars;
you have a right to be here.
And whether or not it is clear to you,
no doubt the universe is unfolding as it should.

Therefore be at peace with God,
whatever you conceive Him to be.
And whatever your labors and aspirations,
in the noisy confusion of life,
keep peace in your soul.

With all its sham, drudgery, and broken dreams,
it is still a beautiful world.
Be cheerful. Strive to be happy.

To which I add: ¡Más Bueno Que El Pan!”
Related Posts:
“Superstitions,” March 21, 2010
“The Deathbed Test,” July 27, 2010
"How To Impress People In a Conversation," October 1, 2010
“How To Make Ethical Decisions,” December 12, 2010
"Rock Around the Sun," December 31, 2010
"The Left-Brain/Right-Brain Life," January 17, 2011
“Life's Little (But Important) Rules,” April 23, 2011
“Picking Your Battles: The Meaning of Words,” July 3, 2011
On Being Lucky: The Second Anniversary of My Heart Transplant,” November 23, 2011
“How To Be Perfect,” March 17, 2012
How To Win an Argument and Change Someone’s Mind,” August 5, 2012
“A Guide to the Best of My Blog,” April 29, 2013